New curb on Bivens remedy?

Posted Mon, May 16th, 2011 12:24 pm by Lyle Denniston

In the 40 years since the Supreme Court first created a right to sue a federal official for a violation of someone’s constitutional rights, it has been very sparing in allowing later attempts to expand that right. In fact, it has only twice added new options to file such lawsuits — and the last of those was approved 31 years ago. On Monday, the Court took on a new test case on the issue, but the chances are, it did so to once more stop a further expansion. This time, it will be confronting a constitutional claim for damages not against a public official, but against private individuals working under government contract — potentially, a far-reaching new option to sue.

The basic decision at issue is the Justices’ ruling in 1971, in Bivens v. Six Unknown Federal Narcotics Agents, in which the Court for the first time opened the federal courthouses to a type of lawsuit not authorized by any federal statute, but created solely by court decree — a right to sue for a claimed violation of one’s constitutional rights, when there was no other available remedy.

In the beginning, in Bivens, the Court authorized a constitutional lawsuit seeking $15,000 in damages against six narcotics agents who forced their way into a New York City apartment without a warrant, threatened to arrest the entire family, searched the apartment unit from end to end, then took the father into custody and subjected him to a “visual strip search.” The father, Webster Bivens, had no other remedy for this alleged Fourth Amendment violation, the Court concluded.

Eight years later, in Davis v. Passman, the Court allowed a Bivens-type lawsuit against a member of Congress for alleged sexual harassment of a female staff member. In the last such ruling, in Carlson v. Green in 1980, the Court permitted a mother to sue a public officer of a prison after her prisoner son had died, allegedly because prison officials failed to provide proper medical care for his chronic asthma. The Court has had multiple requests since then to add new categories of Bivens claims, but regularly has refused to do so.

Last June, the Ninth Circuit Court added a new Bivens-type claim: it ruled that a prison inmate, Richard Lee Pollard, could sue a group of private individuals working under contract as prison guards for Wackenhut Corrections Corp., the operator of the federal prison in Taft, Calif. Pollard contended that he broke his elbow in a fall after tripping over a cart left in a hallway, but that prison guards required him to make use of the arm in painful ways in taking him to and from an outside clinic for treatment, refused to provide a splint for the injury though a doctor had prescribed one, and was required to return to work at a prison job before he had healed fully. (Wackenhut has since become a part of GEO Corp.)

The Circuit Court remarked that “neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law.” It went on to rule that their actions were as if they had been federal employees, and the fact that the prisoner could have sued under California state law did not deprive him of a federal constitutional remedy. Over the dissent of eight judges, the Circuit Court refused to reconsider the ruling en banc.

On Monday, the Supreme Court agreed to review the decision, in the case of Minneci, et al., v. Pollard (docket 10-1104).

At this stage, the Court does not explain why it will hear a case, but the ruling by the Ninth Circuit conflicts directly with decisions of two other Circuit Courts (the Fourth and the Eleventh), and involves the creation of a perhaps wide expansion of the Bivens decision. The private organization, DRI, which seeks to curb civil liability in general, told the Court in a separate amicus brief that the Ninth Circuit ruling “takes Bivens into uncharted territory by exposing private employees to an unprecedented form of personal liability,” and potentially may extend Bivens-type liability well beyond the prison setting, given how common it is for private employees to work under contract for federal agencies.

The Court will hear and decide the case in the new Term that starts next Oct. 3.

This was the only case the Justices agreed on Monday to add to their decision docket.

In other orders, however, the Court invited the federal government to offer its views on three new cases, and will decide whether to hear those only after it gets the government’s responses. Those cases are Freeman, et al., v. Quicken Loans (10-1042), testing how far a 1974 federal law goes to protect home buyers from fees when they obtain mortgage loans, if they received no services justifying the fee; Faculty Senate of Florida International University, et al., v. Florida (10-1139), raising the issue of whether a state government interferes with foreign policy by barring state college professors from using any funds to visit Cuba or any other “terrorist state”; and Republica Bolivariana de Venezuela, et al., v. DRFP LLC (10-1144), seeking clarification by the Court of when a foreign government’s commercial activity inside the U.S. exposes it to lawsuits in American courts, despite a claim of sovereign immunity, when the activity is a refusal to honor a payment obligation on a government bond.

Among the cases denied review on Monday, perhaps the highest visibility one was Mohamed, et al., v. Jeppesen Dataplan, Inc., et al. (10-778) — the latest appeal seeking to challenge the closing down of a lawsuit, because the government claims a “state secrets” privilege, seeking to hold someone liable for the Central Intelligence Agency’s once-secret program of “extraordinary rendition.” That phrase is the technical description of an official practice, used fairly often during the “war on terrorism,” in which an individual is captured in a foreign country, and transferred secretly to another country, for interrogation and, allegedly in some cases, for torture.

In this case, the four foreign nationals targeted by the “rendition” program did not sue the CIA directly, but rather sued a private firm, an affiliate of the Boeing Corp. that was claimed to have provided flight plans and logistics support for CIA-operated planes used to transport the captured individuals to foreign sites. The four individuals argued that the government had improperly claimed a “state secrets” privilege to shut down the lawsuit entirely, instead of using that privilege only to challenge evidence, piece by piece, as involving national security interests. The Ninth Circuit, however, ruled that the privilege may indeed be invoked to end a lawsuit entirely, on the theory that it simply cannot be tried in any way without risking exposure of national secrets.

The Supreme Court has refused repeatedly in recent years to hear appeals challenging the use of the “state secrets” doctrine in cases testing secret intelligence or military operations. It thus appears that some of the most controversial anti-war programs initiated during the George W. Bush Administration may never be tested in federal court.

The Justices made no comment, as usual, in turning down the latest petition. Justice Elena Kagan, the former U.S. Solicitor General, took no part in the action.

The Court on Monday issued rulings on the merits in three cases. Each of these will be discussed more fully in coming posts on this blog. In summary, these were the rulings:

** In Kentucky v. King (09-1272), the Court ruled by an 8-1 vote that lower courts are barred from creating new exceptions, based on claims that police acted in “bad faith,” to the rule that police do not need a warrant to enter a private dwelling in search of evidence of crime if there is an emergency situation that prevents officers from taking time to get a search warrant. The Court said it is “unsound” for courts to find a Fourth Amendment violation when police themselves created an emergency situation and then exploited it, unless the officers in doing so had directly violated the Fourth Amendment. Justice Samuel A. Alito, Jr., wrote for the Court; Justice Ruth Bader Ginsburg dissented alone. The decision left it to the Kentucky Supreme Court to explore whether an emergency existed for the specific actions taken in the entry of an apartment in Lexington, Ky., in search of a suspected drug dealer.

** In CIGNA Corp., et al., v. Amara, et al. (09-804), the Court ruled without a formal dissent that a business firm may be ordered by a federal court to make changes in its pension plan, under the 1974 federal law on employee benefits (ERISA), as a remedy for the company’s failure to give its workers full information about changes being made in their pension benefits. Justice Stephen G. Breyer wrote for the Court; Justice Antonin Scalia, joined by Justice Clarence Thomas, refused to go along with the broader sweep of the ruling, but did not dissent. Justice Sonia Sotomayor took no part in the ruling. The Court returned the case to lower courts to explore the specifics of a potential remedy in this case.

** In Schindler Elevator Corp. v. U.S. ex rel. Kirk (10-188), the Court ruled by a 5-3 vote that, if a government agency gives a private individual a report on information in agency files about a private company, when the data had been sought by the individual under the Freedom of Information Act, that individual may not use that report as a basis for a claim that the company involved had wrongly obtained federal funds. The ruling was an interpretation of a provision of the federal False Claims Act that bars suits to recover misspent federal funds, if the information that forms the basis of the claim had been publicly available previously.. Justice Thomas wrote for the majority, and Justice Ginsburg wrote for the dissenters. Justice Kagan took no part.

The Court is expected to announce additional decisions in argued cases next Monday.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.